Citation Nr: 20026167 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 16-39 857 DATE: April 15, 2020 ORDER Entitlement to service connection for a neck condition is granted. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for an acquired psychiatric condition is remanded. Entitlement to service connection for a low back condition (claimed as thoracic kyphoscoliosis) is remanded. FINDING OF FACT The Veteran’s neck condition is at least as likely as not etiologically related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a neck condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1987 to October 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2013 and February 2015 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). Regarding the acquired psychiatric disability, the Board notes that the Veteran’s initial service connection claim was for an anxiety disorder not otherwise specified. However, in Clemons v. Shinseki, the United States Court of Appeals for Veteran’s Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim; symptoms described; and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In light of the Court’s decision in Clemons, the Board has re-characterized the anxiety issue on appeal as entitlement to service connection for an acquired psychiatric condition. This will provide the most potentially favorable review of the Veteran’s claim in keeping with the Court’s holding in Clemons. Service Connection—Legal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis—Neck Condition The Veteran seeks service connection for a neck condition which he contends originated in service. The medical evidence confirms that the Veteran has current diagnoses of cervical spine strain and degenerative disc disease. See Private Treatment Records and February 2019 VA cervical spine examination. The central issue that must be resolved is whether the Veteran’s current disabilities originated in service or are otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Initially, the Board notes that the Veteran’s service treatment records (STRs) do contain complaints of, and treatment for, neck pain. The Veteran has also submitted a private July 2014 examination which indicate he experiences cervical spine pain which is exacerbated by movement. Additionally, in response to the November 2018 Board remand, the Veteran was afforded a February 2019 VA neck examination. The VA examiner, after an in-person examination, diagnosed the Veteran with cervical strain. The examiner noted that the Veteran reported neck daily neck pain since his injury in service and that the Veteran’s neck condition caused functional loss. The examiner opined that it was less likely than not (less than a 50 percent probability) that the Veteran’s neck condition was related to his active duty because there was no history of care which support the Veteran’s statement that he “just sucked it up.” The Veteran reported during his examinations that he experienced and was treated for neck pain while in service and that this pain has continued from his active duty treatment to present day. The Veteran provided lay statements that his neck pain is in the same location since his injuries in active duty service. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has “unique and readily identifiable features” that are “capable of lay observation.” See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). The February 2019 VA examiner’s opinion was based on the lack of evidence of treatment in the Veteran’s medical records after separation from service. However, the Board notes, “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. at 496. As noted below, the Veteran has offered competent and credible evidence of continuity of symptomatology. The medical opinion was based on a lack of treatment records regarding the Veteran’s neck condition which did not address the Veteran’s competent lay statements and is therefore of limited probative weight. Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). Additionally, the VA examiner acknowledged that the Veteran is currently experiencing neck pain. The Board has considered the Veteran’s lay statements in support of his claim. He is competent to report symptoms, such as pain, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. In this case, the Veteran has reported that he experienced neck pain following an injury in service which have persisted ever since. The Board finds the Veteran competent to report such manifestations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. In this respect, the Board finds the Veteran’s own reports of experiencing ongoing neck pain to be at least as probative as the above-noted VA examiner’s findings, as the Veteran is truly the only person capable of such observation. Additionally, the Veteran’s competent reports of neck pain are supported by his outpatient treatment reports and private examination which indicate the Veteran sought treatment for his neck pain. Given the Veteran’s private examination, VA examination, lay statements, STRs, and outpatient treatment records, the Board finds that the evidence is thus at least evenly balanced as to whether the Veteran’s current neck disability is related to the in-service report of, and treatment for, neck pain. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the Veteran’s neck is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND When VA undertakes to provide an examination or opinion, it must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Headaches The Veteran has reported that his headaches may be related to his neck condition. As part of the November 2018 remand the RO was required to provide the Veteran with a VA examination which discussed the role played, if any, by any neck or spine condition in his headaches. The Veteran was provided with a February 2019 VA headaches examination where the examiner noted that there was no evidence of a primary or secondary headache disorder present. The Veteran’s private treatment physician diagnosed him with a migraine disorder in an August 2019 treatment record. As the Veteran has a currently diagnosed migraine disorder, and a now service-connected neck condition, a VA examination is required to assess whether his headache condition is etiologically related to, or aggravated by, his neck condition. Acquired Psychiatric Condition While there are VA examinations in the record for the Veteran’s claimed psychiatric disabilities, the Board finds them to be inadequate. The November 2012 examiner diagnosed the Veteran with an anxiety disorder. However, the November 2012 examiner only addressed the anxiety disorder on a secondary basis to the Veteran’s back condition and did not opine on direct causation. The March 2019 examiner opined that the Veteran did not have a psychiatric disability and based her findings on a lack of treatment records. Additionally, the March 2019 examiner did not acknowledge the November 2012 examiner’s opinion or diagnosis of an anxiety disorder. The March 2019 examiner provided an August 2019 addendum opinion to address this discrepancy, however, she just stated that the Veteran did not have an anxiety disorder at the March 2019 examination. The examiner did not opine on the etiology of the previously diagnosed psychological condition, she simply stated that he did not currently have one. Based on the above, the Board finds an examination is needed to determine whether the Veteran has any currently diagnosed psychiatric disabilities and if so, whether they are etiologically related to his active duty service. Lower Back Condition (Claimed as Thoracic Kyphoscoliosis) The Board notes in a correspondence dated November 2019 the Veteran’s mother provided a lay statement where she noted the Veteran was not diagnosed with scoliosis at any time before his service in the military. Additionally, the Veteran has provided multiple lay statements attesting to the same. While there are VA examinations in the record for the Veteran’s claimed lower back disability, the Board finds them to be inadequate. In proffering their opinions, the examiners did not take into account the Veteran’s competent lay statements when opining on the Veteran’s disabilities nor the lay statement submitted by the Veteran’s mother. As such, the VA examiners did not adequately assess whether the Veteran’s lower back disability was related to his active duty service and the Board finds an additional examination is required to determine the etiology of the Veteran’s disability. The matters are REMANDED for the following action: 1. Afford the Veteran VA examinations by examiners, who have not previously examined the Veteran, with sufficient expertise to address the etiology of the Veteran’s claimed headache, acquired psychiatric, and lower back disability conditions. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner(s) should state whether the Veteran’s claimed headache, acquired psychiatric, and lower back disabilities at least as likely as not (a 50 percent probability or greater): originated during his period of active service or were otherwise etiologically related to his active service. The examiner must also comment on whether the Veteran’s acquired psychiatric condition or migraine condition are secondary to his now service-connected neck disability. For purposes of these opinions, the examiner(s) should assume that the Veteran is a reliable historian and must not ignore the Veteran’s competent reports of in-service injuries, or of symptoms experienced during active service and since. In this regard, the examiner(s) must discuss and consider the Veteran’s competent lay statements. Additionally, regarding the Veteran’s low back claim, the examiner must discuss the lay statement from the Veteran’s mother indicated above. The examiner(s) must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.